"When fascism comes to America, it will be wrapped in the flag and carrying the cross."
-- Sinclair Lewis

Wednesday, March 21, 2012

Sure, Billy "Pants on Fire" Rehnquist told a whopper to slither onto the Supreme Court, but he probably thought it was just "an innocent fiction"

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With select updates (see text and below)

A big fat liar? Sure, but it may be thathe thought he was telling a higher truth

I'm telling a terrible story,but it doesn't diminish my glory,for they would have taken my daughtersover the billowy waters,if I hadn't, in elegant diction,indulged in an innocent fiction,which is not in the same categoryas telling a regular terrible story.

-- Major-General Stanley, in Act I of The Pirates of Penzance

NOTE: The major-general's daughters and the pirates are singing a different story, or rather two different stories, about his "terrible story," the daughters castigating their father for telling his terrible story ("It's easy, in elegant diction, to call it an innocent fiction"), the pirates threatening vengeance if it should turn out that the general is telling a terrible story.

"The whole wide world of varied political views opens up to the left of William H. Rehnquist."

-- Alexander Bickel (Felix Frankfurter's clerk at the time Rehnquist was Robert Jackson's), in a draft for a 1958 NYT Magazine article

by Ken

Just to be clear: When "Liar Man" Bill told his "terrible story" (not a regular terrible story, of course; just "an innocent fiction"), in 1971 and again in 1986, there were no dreaded Pirates of Penzance threatening to take his daughters over the billowy waters. I'm just going to suggest that he thought the stakes were even higher: that otherwise he wouldn't get his chance to wage judicial battle at the highest level for Rich White Guyz' Privilege (RWGP). In fairness, he probably didn't even think of it as RWGP, but something more like "the way of things," or maybe God's way.

When I first read Adam Liptak's "New Look at an Old Memo Casts More Doubt on Rehnquist" on nytimes.com a couple of days ago, I thought we had something like a smoking gun -- maybe (as we'll see) more like an eyewitness description of the smoking gun -- to prove that then-Assistant U.S. Attorney General William Rehnquist told a big fat lie in 1971 to save his nomination to the Supreme Court, and then reswore the big fat lie in 1986 when he was nominated to become chief justice.

In 1952, a young Supreme Court clerk wrote a memorandum that would come to haunt him.

The court was considering Brown v. Board of Education, the great school desegregation case. The question for the justices was whether to overrule Plessy v. Ferguson, the 1896 decision that said "separate but equal" facilities were constitutional.

The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerk's initials -- "WHR," for William H. Rehnquist.

"I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues," Mr. Rehnquist wrote, "but I think Plessy v. Ferguson was right and should be reaffirmed."

The memo was disclosed by Newsweek in 1971, on the eve of the Senate floor debate on Mr. Rehnquist's nomination to the Supreme Court. It caused a firestorm, one that was rekindled when President Ronald Reagan nominated Justice Rehnquist to be chief justice in 1986.

Opposition to the Brown decision is a good way to doom a Supreme Court nomination. But Mr. Rehnquist had an explanation, which he sent to the Senate Judiciary Committee in a letter in 1971 and repeated under oath in 1986.

The opinions expressed in the memo, he said, were not his own. "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use," Mr. Rehnquist wrote.

Quite a bit of evidence has accumulated over the years to cast doubt on that explanation, and now there is more.

In a new article in The Boston College Law Review, two scholars reconstruct and analyze another letter by Mr. Rehnquist, this one to Justice Felix Frankfurter in 1955, and they draw some stinging conclusions. . . .

The first thing to say is: Did anyone ever really doubt that our Bill was lying when he claimed that the awkward memo didn't represent his thoughts but rather his idea of Justice Jackson's thoughts? Others of Justice Jackson's Supreme Court clerks have always insisted that the justice never had his clerks do any such thing, that when he asked them for their thoughts, he wanted their thoughts. Perhaps most famously, and most movingly, the justice's secretary, Elsie Douglas, said during the 1986 confirmation hearings that Lying Bill's claim

is a smear of a great man, for whom I served as secretary for many years. Justice Jackson did not ask law clerks to express his views. He expressed his own and they expressed theirs. That is what happened in this instance.

Also in 1986, it's worth noting, Lying Bill claimed, "The bald statement that 'Plessy was right and should be reaffirmed,' was not an accurate reflection of my own views at the time." While I can almost see how he might have believed in 1952 that what he was writing reflected Justice Jackson's thoughts, the claim that what he wrote did not reflect his own views at the time seems to me all but inarguably a lie, whether expressed in 1952, 1971, or 1986.

TO APPRECIATE THE NEWLY ALMOST-DISCOVERED1955 LETTER, WE NEED TO ESTABLISH THE TIMELINE

In 1952, when Billy Liar wrote the infamous memo, the Supreme Court was just beginning to grapple with the cluster of segregated-education cases -- eventually five in all -- that would be decided in Brown v. Board of Education, which Brad Snyder and John Q. Barrett call "the most important Supreme Court decision of the twentieth century." In June 1953 Billy, his clerkship completed, returned to Arizona to practice law. From there he watched with growing horror the changes in the Court that began with the advent of Earl Warren as chief justice on Oct. 2, 1953 (on a recess appointment following the sudden death in September of Chief Justice Fred Vinson; he was confirmed by the Senate in March 1954) and the announcement of the unanimous decision in Brown v. Board of Education overturning Plessy v. Ferguson on May 17, 1954.

To be present for that historic announcement Justice Jackson checked himself out of the hospital, where he was recuperating from a heart attack. Less than five months later he suffered another heart attack. He died on October 9.

The loss was felt especially keenly by Jackson's closest personal and professional colleague on the Court, Felix Frankfurter (judicially, they both believed in "judicial restraint"). In the summer of 1955, according to Snyder and Barrett (for footnotes see the original, page 637):

Frankfurter mailed Jackson's family, friends, and admirers a special reprint of Frankfurter's Harvard Law Review and Columbia Law Review tributes to Jackson. Frankfurter likely sent his reprint to Rehnquist, both because of Rehnquist's clerkship with Jackson and his intellectual thrust-and-parry relationship with Frankfurter.

The authors presume that it was in response to this that Rehnquist wrote the 1955 letter to Justice Frankfurter which they consider such a bombshell, even though the letter itself has disappeared.

As Adam Liptak writes, "The story of the letter is itself something of a yarn." Presumably it was among the papers of Justice Frankfurter's archived in the Library of Congress, but as Snyder and Barrett write:

Between 1970 and 1973, a researcher or researchers pilfered diaries and other documents from Frankfurter's papers, prompting an FBI investigation. "The shrewdness with which the choice was made of the stuff to be stolen, leaving the rest, showed it was a scholarly larceny, Supreme Court expert Max Lerner wrote [in the Los Angeles Times]. The thief later returned many items in response to a public appeal from syndicated columnist Jack Anderson. Many Frankfurter diaries and letters, however, are still missing, and Rehnquist's 1955 letter appears to be among them.

UPDATE: Looking over the materials again, I note that what the thief returned thanks to Jack Anderson's intervention wasn't some of the actual documents but photocopies of them.

It's clear that Billy's letter offered a highly negative assessment of his former boss, which we know because Frankfurter forwarded it to a number of people who were in a position to comment on its accuracy, and one commenter in particular, Billy's successor as Justice Jackson's clerk (he had only one clerk for 1953-54, rather than the previous two, which some observers have attributed to a rocky relationship with Billy), E. Barrett Prettyman Jr. (After Jackson's death Prettyman clerked for Frankfurter.) On October 13, 1955, apologizing for the delay in replying, Prettyman wrote Frankfurter a five-page response, which was among the documents that were returned after being stolen from the Frankfurter archive. Snyder and Barrett include the full text as an appendix.

Prettyman, having "had a chance to mull over some of [Rehnquist's] points," replies to four.

1. Bill says Justice Jackson reached the apex of his career as Solicitor General [in 1938-40; in 1940 President Roosevelt appointed him attorney general, and then in 1941 a Supreme Court justice; in 1945-46 he was absent serving as chief prosecutor in the Nuremberg war-crimes trials]. . . .

2. Bill says the Justice had a tendency to go off half-cocked. . . .

3. Bill says the Justice's opinions don't seem to go anywhere. . . .

4. Bill says he never felt that he became a personal friend of the Justice's. . . .

This is all interesting stuff, and I encourage you to read Prettyman's characterizations of Billy's points and his responses. The important point, I think, is that he wrote such a disparaging letter at all so soon after his old boss's death. I would encourage you to read too Snyder and Barrett's attempt to trace the relationship between Billy and the justice following the former's departure from Washington. He remained in touch, they note, and offered comments on decisions decided before Brown, but nothing at all following that momentous decision. I approached this skeptically, but have to say I was fairly well persuaded that indeed the Brown decision altered the relationship.

Of course we'll never know whether the relationship might have been repaired if not for Justice Jackson's death. As Snyder and Barrett show in their laying out of seemingly everything they could find that bears on Billy's subsequent feelings about Jackson, he retained personal admiration for him, while making clear that he felt they had never become personally close, but the Brown decision was a watershed moment for him, and the 1955 letter to Frankfurter "began a pattern of hostility to the Warren Court's individual rights agenda, hostility that manifested itself in public attacks on a Court that Rehnquist viewed as moving in the wrong direction" (page 648).

This is all set out most impressively in the paper. But I find myself thinking about a point Snyder and Barrett make just above this last one:

"Brown, followed so soon by Jackson's death, may have caused Rehnquist to realize that there were subjects on which he and Jackson had disagreed fundamentally."

They point out elsewhere that Billy had left Washington before all the things happened that apparently turned Justice Jackson from an early disinclination to intervene in the school-segregation cases to his participation in the unanimous decision.

Rehnquist never saw the impact of Chief Justice Warren's leadership on the Court, never heard the second round of oral arguments in the school desegregation cases, and never read Jackson's draft concurring opinion in which he explained his vote to hold segregated schools unconstitutional.

There's some irony here in that, as Snyder and Barrett show, Billy's own hostility to Brown clearly mellowed over the years, which perhaps accounts for his startling claim in 1986: "The bald statement that 'Plessy was right and should be reaffirmed,' was not an accurate reflection of my own views at the time."

It seems to me pathetically obvious that this "bald statement" exactly reflected Billy's "views at the time." And I'm going to guess further that he thought, "at the time," that it also reflected Justice Jackson's views, sort of like what he said in 1971 when the awkward, almost certainly confirmation-killing 1952 memo surfaced. By then, however, it was too late to say that the memo represented what he believed to be his boss's as well as his own views. That probably would have killed his chance of being confirmed. In fact, during the 1971 confirmation dust-up Billy wrote to Senate Judiciary Committee Chairman James Eastland: "in view of some of the recent Senate floor debate, I wish to state unequivocally that I fully support the legal reasoning and the rightness from the standpoint of fundamental fairness of the Brown decision." (Yeah, right.)

But as Snyder and Barrett show, from the time of the Brown decision Billy felt himself a voice crying in the wilderness against the legal heinousness of the Warren Court's radical liberal drift. Actually, his sense of loneness and persecution dated back to his time as a clerk, when, as he revealed in a 1957 U.S. News and World Report article, he felt the Court was under siege from a cabal of liberal clerks. This prompted the NYT Magazine reply by Alexander Bickel of which the authors found a draft that included the bit from which I quoted at the top:

with all due appreciation of his great gifts . . . the whole wide world of varied political views opens up to the left of Willliam H. Rehnquist. If antidotes [for alleged law clerk "leftism"] were needed, he was a universal one.

Somewhere in the course of my reading over the last couple of days, I'm almost sure I encountered a Rehnquist quote that explained his philosophical agreement with what he took to be Justice Jackson's view that the courts should not be intervening to secure previously unprotected "rights," the explanation being that in the end people have only those rights that are granted by the majority.

I'll keep looking for the quote, because I think it represents what Billy Liar truly believed: that majority rules when it comes to citizens' rights, which to me is exactly antithetical to the basic premise of American constitutional government, which is built on majority rule with protection of minority rights. I can well believe that our Billy didn't believe that, just as most conservatives, if they're being honest, don't.

AHA, FOUND! IT'S FROM THE 1952 MEMO!

The Wikipedia article on Billy Liar includes an additional bit of text from the 1952 memo itself, buttressing the case for upholding the Plessy "separate but equal" standard: "To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

In truth those who hold this view don't really care about majorityness, at least not to the point of making a fetish of it. Because if a majority of people favor rights that orthodox white male Christian received opinion doesn't, they don't still believe in it. Witness the continued psychotically vicious battle the Right is waging against basic civil rights for LGBT citizens, even as growing majorities of Americans are reported to favor those rights as well.

I imagine Billy Liar, wherever he is, would be pleased to see his hard word pushing back against the tide being rewarded today with the coming of a Supreme Court majority that's not just holding the line but frantically pushing it back.

UPDATE: BARRETT PRETTYMAN DOESN'T SEE THE1955 REHNQUIST LETTER THE WAY OUR AUTHORS DO

I should have included this tidbit reported by Adam Liptak in his NYT piece:

In an interview last week, Mr. Prettyman said "there is absolutely no doubt in my mind" that the 1952 memo represented Mr. Rehnquist's views and not those of Justice Jackson. But Mr. Prettyman said he was not persuaded that the 1955 letter was motivated by unhappiness about the Brown decision as opposed to what he called a rocky relationship between the justice and the clerk.

Still, Mr. Prettyman said he welcomed the attention the new article brought to Chief Justice Rehnquist’s role in and reaction to the Brown decision.

"The fact that a justice and a chief justice lied in order to advance himself," Mr. Prettyman said, referring to Chief Justice Rehnquist in his confirmation hearings, "the fact that he thought the way he did about Brown -- which was that it would be a national disgrace -- those facts alone justify an exploration of what happened."

UPDATE TO THIS UPDATE: It seems to me worth pointing out, belatedly, that unlike the rest of us, who have seen only Prettyman's response to the 1955 Rehnquist letter, Prettyman had of course seen the actual letter. True, that was a lot of years ago, but that -- in addition to his presence in Justice Jackson's chambers in the period following Billy Liar's departure -- may still give him an edge in assessing the relationship between the justice and his former clerk and the former clerk's motivations in writing the letter.

SECOND UPDATE: IN ADVANCING MY THEORY THAT BILLYTHOUGHT JUSTICE JACKSON THOUGHT JUST LIKE HE DID . . .

I should probably have stipulated that I'm hypothesizing that Billy had all kinds of interest in what was going on inside his own head and way, way less in what might be going on in Justice J's. This is very much in keeping with the common far-right-wing mindset wherein the world is little more than a (faint) projection of what's going on inside one's own head. In other words, partly I think Billy could easily have been quite mistaken about what his boss thought because his boss was merely a Supreme Court justice whereas he (Billy) was the center of the universe, at least in his own universe -- er, mind.